As the public comment period continues on the proposed amendments to the Federal Rules of Civil Procedure, the Senate Judiciary Committee joined in the discussion this week by holding a hearing on the proposals. The hearing provided another opportunity for comment on the proposed rules and their potential impact. Andrew Pincus, a partner at Mayer Brown, began his testimony at the hearing with, and also included in his written testimony, a quote from IAALS’ and the American College of Trial Lawyers Task Force on Discovery and Civil Justice’s Final Report from 2009, which recognizes major themes that emerged from a survey of the College Fellows. One theme, which Mr. Pincus highlighted, is:
Although the civil justice system is not broken, it is in serious need of repair. In many jurisdictions, today’s system takes too long and costs too much. Some deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test while some other cases of questionable merit and smaller cases are settled rather than tried because it costs too much to litigate them.
This theme underlies the current proposed amendments, particularly the proposal to give proportionality greater prominence by making it a part of the scope of discovery. While there are differing opinions on the impact of these proposals, there was a consistent message from the hearing that empirical research plays an important role in our analysis of these issues. We agree that this is an essential piece of the puzzle, and one which ties in directly with one of our goals in the Rule One Initiative: providing ongoing empirical research to assess which processes and procedures best achieve access, efficiency, and accountability in the civil justice system.